India, like members of the Association of South-East Asian Nations, may feel the brunt of the July 12 decision of the Permanent Court of Arbitration at The Hague against China over the South China Sea. For there is no saying what adventurist action the Chinese leaders might take to compensate for what they undoubtedly see as a grave loss of face.
If Italy’s invasion of Ethiopia destroyed the League of Nations, China’s refusal to accept The Hague court ruling on the South China Sea can kill the nascent system of international justice. Some might say Beijing’s latest defiant boast of flying bombers, fighter jets and other military aircraft over contested areas of the South China Sea severely harms its international reputation and will fuel regional concerns about China’s so-called “peaceful rise.” But it also underlines a formidable power that the world cannot ignore.
The South China Sea is a 3,500,000 square kilometre expanse of marginal water that is part of the Pacific Ocean, encompassing an area from the Karimata and Malacca Straits to the Strait of Taiwan. China calls it a “core interest” which is why The Hague ruling in the case filed by the Philippines has been called a “sweeping victory” against China. It was expected that given the legal underpinnings, the Philippines would win most of the case, but the ruling was even more wide-ranging and negative for China than was assumed.
It concluded that China has no legal basis to claim historic rights within what it calls the “nine-dash line” in the South China Sea and that none of the land features in the Spratly Islands meet the criteria for an island that China — or any other country — can use to claim a 200-nautical-mile exclusive economic zone. It argued that to the extent China may have had any such rights in the past, these were extinguished by the enactment in 1982 of he UN Conventions of the Law of the Sea (UNCLOS) and its system of allocating maritime zones.
The fact that many countries — including the United States, Australia and Japan — have welcomed the arbitration outcome and are pressuring China to comply with it makes the ruling seem even more of a political action. Not surprisingly, Beijing has rejected the ruling, and reasserted its “indisputable sovereignty” over the South China Sea. Denouncing the Tribunal’s ruling as invalid, the Chinese Foreign Ministry stated that it does not “accept or recognise it.” What was intended as a solution of maritime disputes will have unintended negative consequences for regional security.
The Tribunal’s ruling breaks what has been called the “balance of ambiguity” in the disputes. One major cause of competing claims is UNCLOS’s inherently ambiguous terms. Different claimants have interpreted the law to make claims in their own favour so that no country’s claims are unchallenged. But although the legal ambiguity may make it hard to resolve disputes, it provides a certain flexibility for all claimants to manage policy, and leaves room for compromises, if necessary. Nationalist sentiments stirred up by sustained media campaigns heighten the risk of confrontation, but there is also a possibility for the Philippines to use its new leverage to its advantage through new negotiations.
The Tribunal’s ruling officially ended this ambiguity by rejecting all of China’s claims. But it would be naive to believe that the ruling can resolve disputes. No great power ever accepts an international legal verdict that harms its national interests. The unintended outcome of the arbitration might be the escalation of disputes because it pushes Chinese leaders into a tight corner. They might try to compensate for this perceived loss of face by taking risky compensatory actions in other spheres. Although China made it clear in 2013 that it would not participate in the arbitration, the Tribunal ruling will be seen as a major diplomatic setback.
A damaged international reputation will put Xi Jinping’s power and political legitimacy within China at stake. Mr Xi has no choice but to fight back against the tribunal’s decision, given nationalist sentiments in a chauvinistic Chinese society that regards Tibet, Taiwan and such regions of India as the Aksai Chin plateau and Arunachal Pradesh state as parts of China. Political leaders are often most likely to take risky actions when they feel frustrated and cornered by a disadvantageous situation. And Mr Xi now finds himself in just such a predicament. Although it is still not clear how China will regain its loss of face, further militarisation in the South China Sea, through military exercises like the recent flights for example, seems unavoidable in the near future.
The Philippines and other beneficiaries of the ruling will also face the dilemma of winning too much that may encourage a self-righteous yet unwise political response. As the major winner of the arbitration, the Philippines has to decide what to do next. Since the Tribunal has no enforcement mechanism, the victory will not be automatically or easily transferred to substantial territorial and maritime gains.
According to the arbitration, Mischief Reef is in the EEZ of the Philippines so that China’s current occupation is “illegal.” But China has already made it clear it will not leave the Reef voluntarily. The Tribunal also ruled that Filipino fishermen have the right to access the Scarborough Shoal, which has been under tight Chinese control since 2012. It now remains to be seen if the Philippines is willing to take military action against China’s “illegal occupation” or “illegal control.” Does it have the capacity to do so? And if it does decide to take action, will the United States, which has a defence treaty with the Philippines, come to its aid?
There is always a policy dilemma between might and right.
According to some analysts, the United States is an even bigger winner than the Philippines. While Manila is struggling to retain local rights, Washington is engaged in a strategic battle for global authority. It will enjoy more “freedom of navigation” – or FON — in the region since the Tribunal concluded that Second Thomas Shoal and Mischief Reef are low tide elevations, and are therefore not entitled to be designated territorial seas as China does.
Last year, the United States started its military challenge against China’s land reclamation through a series of FON operations. The Tribunal ruling further strengthens the legitimacy of its FON operations in the South China Sea. But this self-righteous perception and related actions will definitely trigger more intensive competition between the United States and China that may not serve either country’s long-term commercial and even strategic interests.
India, too, must take stock of how this major international setback will impact on China’s conduct in the Himalayas.
